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IN SUPREME COURT OF INDIA Page 1 of 10

PETITIONER:
SMT. YALLAWWA

Vs.

RESPONDENT:
SMT. SHANTAVVA

DATE OF JUDGMENT: 08/10/1996

BENCH:
N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:
J U D G M E N T
S.B. Majmudar, J:
The appellant had brought in challenge by special leave
under Article 136 of the Constitution, an order passed by
the learned Single Judge of the High Court of Karnataka
allowing the revision application moved by the respondent.
The High Court has set aside the ex parte decree for divorce
passed against the opponent by the learned Trial Judge.
In order to appreciate the grievance of the appellant,
who is alleged to be the ex-mother-in-law of the respondent,
a few facts leading to these proceedings are needed to be
noted ar the outset. The respondent was the married wife of
one Basappa. The appellant is the mother of said Basappa.
Respondent’s husband, Basappa, filed a petition for
obtaining divorce against the respondent on the ground of
desertion. The said application was moved by said Basappa
being M.C. No.25 of 1989 in the court of the learned Civil
Judge, Gadag in Karnatake State. The said application was
moved by Basappa under Section 13(1) (i-b) of the Hindu
Marriage Act, 1955. The said divorce petition came to be
decreed ex parte against the respondent on 15.12.1989. It is
the case of the appellant, mother-in-law of the respondent,
that her son Basappa having obtained the decree of divorce
filed a suit being O.S No.42 of 1990 in the court of the
Munsif at Ron for permanent injunction against the
respondent contending that through she was no longer the
wife of Basappa in view of the decree of divorce yet she was
unnecessarily interfering with his possession and enjoyment
of the suit property. It is the further case of the
appellant that on 1.3.1990 the respondent was served with
the summons in O.S. No.42 of 1990 but remained absent. Said
Basappa, husband of the respondent, died on 26.5.1990. It is
thereafter that the respondent filed miscellaneous
application being Miscellaneous case No.102 of 1990 under
Order IX Rule 13 C.P.C. in the Court of Civil Judge at Gadag
for setting aside the ex parte divorce decree passed on
15.12.1989 It was the case of the respondent that she has
come to know about the ex parte divorce decree only on
31.3.1990; that she was not served with summons on the said
petition filed by Basappa. She also filed an application for
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condonation of delay in filing the Miscellaneous case for
setting aside the ex parte decree of divorce.
The learned Trial Judge held that the delay was not
properly explained by the respondent and that the respondent
was aware of the divorce proceedings much prior to the date
on which she is alleged to have come to know about the
divorce decree. The Trial Court, therefore, dismissed the
respondent’s application under Order IX Rule 13 C.P.C. as
time barred by its order dated 27.7.1991. Respondent files a
revision petition being Revision Petition No.3683 of 1991
under Section 115 of the C.P.C. in the High Court of
Karnatake. The learned Single Judge of the High Court
allowed the said revision application on the ground that the
respondent being an illiterate lady would not have read the
notice published in the newspaper about the pendency of the
divorce proceedings taken out by the respondent’s husband
Basappa against her and, therefore, this was a fit case for
condoning the delay in filing the miscellaneous application
under Order IX Rule 13 C.P.C. and also for setting aside the
ex parte decree. Accordingly the learned Single Judge set
aside the ex parte decree by the impugned order and also
ordered that the Hindu Marriage Petition be restored to the
file. The learned Trial Court was directed to take up the
matter and dispose it of in accordance with law as
expeditiously as possible. It is this order of the High
Court that has been made the subject matter of appeal by the
appellant who claims to be the legal representative of her
deceased son Basappa. It may be noted at this stage that the
miscellaneous application under Order IX Rule 13 as moved by
the respondent was also opposed by the present appellant,
mother of the deceased Basappa, as deceased Basappa was
already dead before the filing of application for setting
aside the ex parte decree in the Trial court and that is how
the appellant remained a party to the present proceedings
all through out upto this Court.
Learned counsel for the appellant vehemently submitted
that the High Court had patently erred in allowing the
revision application. His submission was that the respondent
was duly served by ways of substituted service under Order V
Rule 20. That inspite of the publication of notice of
pendency of the Hindu Marriage Petition in the newspaper
having circulation in the local area, the respondent had not
cared to content the proceedings and, therefore, the ex
parte decree was rightly passed by the Trial Court. It was
further contended that the respondent had knowledge of the
ex parte decree at least form the day on which she was
served with the summons in O.S. No.42 of 1990 on 1.3.1990
and still she filed miscellaneous application as late as on
3.7.1990 and she had made out no case for condoning the
delay in filing the said application and, therefore, it was
rightly rejected by the Trail Court and that the order has
been wrongly set aside by the High Court. In the
alternative, the learned counsel submitted that in any case
the respondents application under Order IX rule 13 C.P.C.
was not maintainable as deceased Basappa who had obtained
the divorce decree against the respondent was already dead
by the time the respondent filed the said application under
Order IX Rule 13 C.P.C. for setting aside the ex parte
decree. Hence the proceedings by way of said application had
stood abated as divorce proceedings represented a personal
cause of action both for the husband as well as the wife and
consequently the right to sue has not survived for
challenging the ex parte divorce decree after the death of
decree-holder husband. The application was, therefore, not
maintainable even on that ground. Learned counsel, however,
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frankly submitted that this contention was not canvassed
before the High Court but in his submission it goes to the
root of the matter and hence deserves consideration. Learned
counsel for the respondent-wife, on the other hand,
submitted that the revision application ought to have been
treated as an appeal from the order by the Trail Court as
appeal did lie against the order of the Trial Court refusing
to set aside the ex parte decree as per the provisions of
Order XLIII Rule 1(d) C.P.C. He submitted that of the said
proceeding was an appellate proceeding then the High Court
was justified in interfering with the order passed by the
learned Trial Judge for the obvious reason the respondent
was tried to be served in way if substituted service under
Order V Rule 20 C.P.C. That she being an illiterate lady had
not read and could not have read the newspaper publication
about the pendency of the Hindu Marriage Petition and
consequently she had no knowledge about the pendency of the
said petition. Even otherwise it was not shown that any case
was mode out by the plaintiff in that case for getting the
notice served by way of substituted service and no attempt
was made to serve the respondent in ordinary manner as
required by Order V Rule 12 as well as Order V Rules 15 and
17 C.P.C Consequently, the ex parte decree was a nullity
being passed against a party which was not served in
accordance with law and in case of such a null and void
decree, there was no question of limitation or in ay case
limitation ought to have been condoned in the interest of
justice by the Trail Court itself and as that was not done,
the High Court was justified in condoning the delay. It was
not true that the respondent knew about the ex parte decree
when she was served with notice on 1.3.1990. Even assuming
that it was so, the delay of few months in applying for
setting aside the ex parte decree deserved to be condoned in
the interest of justice and as the High Court has rightly
condoned the delay this Court under Article 136 of the
Constitution may not interfere with the said discretionary
order. So far as the alternative contention of concerned, it
was neither canvassed before the High Court nor before the
Trial Court, the said contention deserves to be rejected
even on merits. The said contention has no force for the
simple reason that once and ex parte decree is passed
against the wife on the ground of desertion apart from the
stigma which would be attached to the respondent by the said
decree, she would lose proprietary right in the husband’s
property. In case of demise of the husband in the absence of
such decree of divorce she would be entitles to inherit the
deceased husband’s property as his widow being heir of first
class along with the appellant, mother of the deceased.
Consequently, when an ex parte divorce decree has such
pernicious consequences against the wife, it could not be
said that proceedings for setting aside such an ex parte
decree would abate on the death of the original petitioner-
husband after he had obtained such an ex parte decree.
We have carefully considered the aforesaid rival
contentions. In order to appreciate the main grievance of
the appellant against the impugned order of the High Court,
it is necessary to note at the outset that the respondent
was seeking to get the order of the Trial Court dismissing
her application under Order IX Rule 13 C.PC. quashed by the
High Court. It is true that she moved a revision application
for that purpose but the order of the Trial Court refusing
to set aside the ex parte decree was clearly appealable
under Order XLIII Rule 1(d) C.P.C. which provides that an
appeal shall lie from the orders listed in the said
provision and in clause (d) is mentioned an order under Rule
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13 if Order IX rejecting an application (in a case open to
appeal) for an order to set aside a decree granting divorce
under Section 13(1)(i-b) whether ex parte or bipartite is a
decree which is appealable under Section 28 of the Hindu
Marriage Act, 1955. Consequently, the order of the Trial
Court refusing to set aside such an ex parte decree and
rejecting the application under Order IX Rule 13 C.P.C.
could have been validly made the subject-matter of an appeal
under order XLIII Rule 1(d). Therefore, the revision
application filed by the respondent before the High Court
should be treated in substance as one by way of
miscellaneous appeal. Once the High Court has appellate
jurisdiction over the impugned order of the Learned Trail
Judge, it is obvious that the High Court was fully competent
to interfere with the order by re-appreciation the facts of
the case. The learned Single Judge had doubt that respondent
being an illiterate lady living in a different town could
not have known through the newspaper that her husband head
filed a divorce petition against her and, therefore, she had
no knowledge about the divorce petition. Consequently, the
ex parte decree could be treated as one passed against the
party which was not served and which had no knowledge about
the said proceedings. The learned counsel for the respondent
was also justified in submitting that the Trail Court could
not have almost automatically granted the application for
substituted service without taking steps for serving the
respondent by ordinary procedure as laid down by order V
Rules 12, 15 and 17 C.P.C. It must be kept in view that
substituted service has to be restored as the last resort
when the defendant cannot be served in the ordinary was and
the court is satisfied that there is reason to believe that
the defendant is keeping out of the way for the purpose of
avoiding service, or that for any other reason the summons
cannot be served in the ordinary way. In the present case,
it appears that almost automatically the procedure of
substituted service was restored to. It is also clear from
the record of the case that respondent being an illiterate
lady would not have known about passing of the ex parte
decree earlier otherwise she could have moved for setting
aside the decree on any day prior to the day on which she
filed this application. Sufficient cause was therefore, made
out for condoning the delay in filing the application for
setting aside the ex parte decree. The High Court, in our
opinion, has rightly code to this conclusion which calls for
no interference under Article 136 of the Constitution, when
substantial justice had been done to the parties and
opportunity has been given to the wife to content the
divorce petition which had terminated against her without
giving any hearing to her.
That takes use to the consideration of the alternative
contention canvassed by the learned counsel for the
appellant. It is true that this contention was not canvassed
either before the Trial Court of before the High Court.
However, as this contention touches the maintainability of
the application , we have thought it fit to hear the learned
counsel on this point. So far as the contention of
maintainability of the application of the respondent-wife is
concerned, it must be kept in view that petition of divorce
was moved by the husband for getting his marriage with the
respondent dissolved by a decree of divorce on the ground
that the respondent deserted him fora continuous period of
not less that two years immediately preceding the
presentation of the petition. It is also to be kept in view
that such petition for divorce can be moved either by the
husband or the wife, as the case may be. To that extent it
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is certainly a personal case of action based on one or more
matrimonial misconducts alleged in the petition against the
erring spouse. Consequently, in such proceedings before and
decree comes to be passed of either of the spouse expires
pending the trial then the personal case of action would die
with the person. Such civil proceedings would not abate only
if right it sue survivors after the death of one or more of
the parties to the proceedings as laid down by Order XXII
Rule 1 C.P.C. However, if during the pendency of the
petition for divorce either of the spouses expires, the
cause of action being personal to both of them, the right to
sue would not survive. The next question is whether after
the decree of divorce of passed ex parte or bipartite
against the other spouse whether the right to sue would
survive for the spouse against whom such decree had been
passed by the Court and whether such a decree can be got set
aside by the surviving spouse either by filing an appeal or
by moving an application under Order IX Rule 13 C.P.C. for
getting it set aside if it is an ex parte decree. The answer
to the question will depend upon the legal effects of such a
decree of divorce passed by the Trial Court under Section
13(1) of the Hindu Marriage Act. It is obvious that so long
as the decree is not passed and proceedings are at any stage
prior to the decree, no rights or obligations of either
spouse get crystalized. The marital status of both the
spouses remains the in tact as it was prior to the filing of
the suit. But once a decree gets passed in such proceedings
the rights and obligations of the respective spouses who are
parties to such proceedings get crystalized under the orders
of the court. The marriage gets dissolved; the status of the
spouses gets changed and they become ex-husband and ex-wife.
As a result of such a decree of divorce the marriage tie is
snapped. Both of them become free to marry again as laid
down by Section 15 of the Hindu Marriage Act. Not only that
after such a decree when the spouses have ceased to be
husband and wife and become ex-husband and ex-wife,
proprietary right of both the spouses also get affected. As
per Section 8 of the Hindu Succession Act, if a male Hindu
dies intestate, his widow would be entitled to inherit his
property being a relative specified in class 1 of the
Schedule. Similarly, if the wife dies leaving behind her any
property, as per Section 15 of the Hindu Succession Act, the
property of the female Hindu shall devolve according to the
riles set out in Section 16 - firstly, upon the sons and
daughters (including the children of any pre-deceased son or
daughter) and the husband. Thus if a female Hindu dies
leaving behind her children and husband, the husband also
becomes entitled to inherit her property as first class
heir. Consequently, because of a divorce decree when the
spouses do not remain husband and wife, the mutual rights of
inheritance in each other‘s property on the death of either
of them got extinguished. Therefore, apart from the divorce
decree destroying the erstwhile status of husband and wife,
it has a direct impact on the property rights of the
concerned spouses. Even that apart, as per Section 9 of the
Hindu Adoption and Maintenance Act, 1956, a Hindu widow is
entitled to be maintained out of her deceased husband’s‘s
estate and failing which by her father-in-law under
circumstances laid down by the said section. Even this right
will vanish after the decree of divorce, when her husband
dies after obtaining the said decree against her. It has
also to be kept in view that when a decree of divorce gets
passed against a spouse on the grounds of matrimonial
misconduct mentioned in Section 13(1) of the Hindu Marriage
Act, it attaches a social sigma on the concerned spouse.
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Such a spouse cannot be said to be left without any remedy
to get such finding vacated by filing an appeal or if it is
am ex parte decree to get it set aside by filing an
application under Order IX Rule 13 C.P.C. Cause of action
for getting such an adverse finding stigmatising the
concerned spouse, cannot be said to be purely a personal
cause of action against the departed spouse who was armed
with a decree in his or her favour based on such a finding.
When such legal affects flow from divorce decree, it cannot
be said with any emphasis that proceedings for setting aside
such a decree either by way of appeal or if it is an ex
parte decree by way of application under Order IX Rule 13
C.P.C. would also abate and such a right to sue for getting
the divorce decree set aside by the aggrieved party whose
status and proprietary rights get adversely affected by such
decree would not survive to such an aggrieved spouse, It is
also pertinent to note that as per Section 305 of the Indian
Succession Act, 1925 an executor or administrator has the
same power to sue in respect of all causes of action that
survive the deceased and may exercise the same power for
recovery of debts as the deceased had whin living, Save and
except the personal cause of action which dies withe the
deceased on the principal of "actio personal is moritur cum
persona," i.e. a personal cause of action dies with the
person, all the rest of causes of action which have impact
on proprietary rights and socio legal status of the parties
cannot br said to have died with such a person.
Learned counsel for the appellant submitted one
objection in connection with such proceedings. He submitted
that if such an action survives and the challenge to a
decree ex parte or bipartite for divorce is found to be
maintainable at the instance of the aggrieved spouse against
whom the decree has been passed then persons who are non-
spouses will have go be joined in the litigation and this
would go counter to Section 13 of the Hindu Marriage Act.
This difficulty is more imaginary than real. Once a divorce
decree is passed., the stage of launching any petition under
Section 13(1) dies bot survive. It is true that Section 13
of the Hindu Marriage Act lays sown that marriage whether
solemnized before or after the commencement of the Act may
be dissolved by a decree of divorce on the grounds mentioned
therein on a petition presented by either the husband or the
wife. Thus, initially when such petition is to be presented,
the person who presents such petition must be either wife or
husband and the other party would be the other spouse. But
once these proceedings are initiated by the concerned
aggrieved spouse, the trial then proceeds further. It is of
course true that pending such trial if either of the spouses
expires then, as seen earlier, the personal case of action
against the husband or the wife, as the case may be, dies
with the departing spouse. As no rights are still
crystalised by them against or in favour of either spouse,
no proprietary effect or any adverse effect on the status of
the parties would get generated by mere filing of such
petition and the status quo ante would continue to operate
during the trial of such petition. However the situation
gets changed once a decree of divorce follows in favour of
either of the spouses whether such decree id bipartite or ex
parte. Thereafter, as noted earlier, direct legal
consequences affecting the status of parties as well as
proprietary rights of either of them, as noted earlier,
would flow from such a decree. Under these circumstances, if
the aggrieved spouse who suffers from such legal effects of
the adverse decree against him or her is told off the gates
of the appellate proceedings or proceedings for setting
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aside such ex parte decree, the concerned spouse would
suffer serious legal damage and injury without getting any
opportunity to get such as decree set aside on legally
permissible grounds. Consequently, it may be held that once
the petition under Section 13 of the Hindu Marriage Act
results into any decree of divorce either ex parte on
bipartite then the concerned aggrieved spouse who suffers
from such pernicious legal effects can legitimately try to
get them reversed through the assistance of the court. In
such an exercise, all other legal heirs of deceased spouse
who are interested in getting such a decree maintained can
be joined as necessary parties. Section 13(1) of the Hindu
Marriage Act can obviously come on the way of such
proceedings being maintained against the legal heirs of the
decree-holder spouse. A mere look at the ground of Section
13(1) will show that a Hindu marriage can be dissolved on
the proof of matrimonial misconduct of very serious nature
as mentioned in the concerned grounds, namely, that the
offending spouse, after the solemnization of the marriage,
has voluntary sexual intercourse with any person other than
his or her spouse; or has treated the petitioner with
cruelty; or had deserted the petitioner for a continuous
period of not less than two years immediately preceding the
presentation of the petition; or has ceased to be a Hindu by
conversion to another religion; or has been incurably of
unsound mind, or has been suffering continuously or
intermittently from mental disorder; or has been suffering
from a virulent and incurable form of leprosy; or has been
suffering from venereal disease in a communicable form; or
has renounced the world by entering any religious order or
had not been heard of as being alive for a period of seven
years or more. These grounds to say the lease, to found
established, against the offending spouse would be serious
matrimonial misconducts or incapabilities and such a spouse
will go with a stigma for the rest of his or her life which
will have serious pernicious consequences not only social
but also legal, as we have noted earlier. It a decree of
divorce on these grounds whether ex parte or bipartite is
not permitted to be challenges by the aggrieved spouse, it
wold deprive the aggrieved spouse of an opportunity of
getting such grounds re-examined by the competent court. It
cannot, therefore be said that after a decree of divorce is
passed against a spouse whether ex parte or bipartite such
aggrieved spouse cannot prefer an appeal against such a
decree or cannot move for getting ex parte divorce decree
set aside under Order IX Rule 13 C.P.C. Such proceedings
would not abate only because the petitioner who has obtained
such decree dies after obtaining such a decree. The cause of
action in such a case would survive qua the estate of the
deceased spouse in the hands of his to her heirs or legal
representatives. Consequently in such appellate proceedings
or proceedings under Order IX Rule 13 C.P.C., other heirs of
the deceased spouse could be joined as opposite parties as
they would be interested in urging that the surviving spouse
against whom such decree is passed remains a divorcee and is
not treated to be a widow or widower of the deceased
original petitioner so that she or he may not share with
other heirs the property of deceased spouse. So far as the
other heirs of the deceased spouse are concerned, they would
certainly be interested in getting the decree of divorce
confirmed by the appellate court or by the Trial Court by
opposing application under Order IX Rule 13 C.P.C., if it is
an ex parte decree against the concerned spouse. It must,
therefore, be held that when a divorce decree is challenged
by the aggrieved spouse in proceedings whether by way of
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appeal or be way of application under Order Rule 13 C.P.C.
for setting aside the ex parte decree of divorce, right to
sue survives to the aggrieved surviving spouse if the other
spouse having obtained such decree dies after the decree and
before appeal is filed against the same by the aggrieved
spouse or application is made under Order IX Rule 13 by the
aggrieved spouse for getting such an ex parte decree of
divorce set aside. Similarly, the right to sue would also
survive even if the other spouse dies pending such appeal or
application under Order IX Rule 13 C.P.C. In either case
proceedings can be continued against the legal heirs of the
deceased spouse who may be interested in supporting the
decree of divorce passed against the aggrieved spouse.
It is now time for us to refer to the direction of
different High Courts on which strong reliance was placed by
either side. Learned counsel for the appellant in support of
alternative contention that proceedings under Order IX Rule
13 C.P.C. would abate on the death of the husband who had
obtained an ex parte decree against his wife relied upon a
decision of the Madras High Court in the case of Saraswati
Ammal vs. Lakshmi (A.I.R. 1989 Madras 216) wherein a learned
Single Judge no doubt had taken the view which is canvassed
by the learned counsel for the appellant. It has been
observed by the learned Judge that where on application by
husband alleging that his wife deserted him intentionally
and without any justification a decree of divorce was passed
ex parte and the husband died subsequently on passing of the
decree, the wife could not seek to set aside ex parte decree
thereafter by impleading the legal representatives of the
deceased husband. The proceedings for divorce initiated by
deceased husband was purely personal to him founded on the
subsistence of the marriage between him and his wife and on
death the proceedings at whatever stage they were stood
abated. When the husband alleged that wife deserted him
without any justification that complaint was purely a
personal complaint of husband against his wife with which
the husband’s legal representatives had nothing whatever to
do. The very basis for the initiation of proceedings for
divorce was purely personal to husband and when he died,
there was no question of its survival in the estate of
deceased husband either for his benefit or for the benefit
of wife. The deceased husband was not seeking the
enforcement of any right, which on his death, would vest in
his heir at law or the representative of his estate. It is
difficult to appreciate this line of reasoning. It is true
that such decree is passed in a petition moved by the
husband on the ground of desertion by his wife. It is also
true that these proceedings remain purely based on personal
cause of action till they reach finality at the trial, but
once a decree of divorce is passed certain legal effects
regarding the status of parties and even proprietary effects
flowing from such decree as noted earlier would arise as a
direct consequence of such a decree. That will have a
straight impact on the estate of the deceased husband or
wife, as the case may be. Unfortunately learned Judge was
not apprised of these legal pernicious effects flowing from
ex parte decree of divorce against the aggrieved spouse.
That had led the learned Judge to assume that there were no
legal consequences of ex parte decree on the other spouse.
It is also not correct to observe that legal representatives
of the husband have nothing to do with these proceedings. As
we have seen earlier, the proprietary right of other legal
heirs of the deceased husband to get full share in the
deceased husband’s property would get directly affected and
curtailed of such decree is set aside. On the other hand,
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such right would get enlarged if such a decree is sustained
in appeal or is maintained under Order IX Rule 13 C.P.C. The
aforesaid decision of the learned Single Judge of the Madras
High Court, therefore, must be held to be erroneous. In Mst.
Bhan Kaur vs. Isher Singh & Ors. (A.I.R. 1959 Punjab 553) a
view similar to that of the learned Single Judge of the
Madras High Court had been taken which in our view also does
not lay down the correct law. On the other hand, we find
that a learned Single Judge of the High Court of Bombay in
the case of Kamalabai vs. Ramdas Manga Ingale (A.I.R. 1981
Bombay 187) has correctly held that where an appeal was
filed by wife against the decree of divorce and the
respondent died during the pendency of the appeal, the
appeal cannot be treated as having abated on the death of
the respondent. It was further observed that where the
position is not free from doubt equitable consideration must
prevail and bearing in mind the nature of the conclusion,
the far-reaching effect of the findings of the Court, both
on personal status and property rights, it is desirable that
the party aggrieved by the decree of the trial court must
have the opportunity to have the findings reversed and this
opportunity must be assured irrespective of the death of the
respondent. For coming to the aforesaid conclusion, the
learned Judge had relied upon the earlier decision of the
Division Bench of the High Court in the case of Suhas
Manohar Panda vs. Manohar Shamrao Pande (A.I.R. 1971 Bombay
183) and the decision of the Division Bench of the Andhra
Pradesh High Court in the case of Verma Sunanda vs. Vempa
Venkata Subbarao (A.I.R. 1957 Andhra Pradesh 424). It must,
therefore, be held that after a decree of divorce is
obtained by the petitioning husband against his wife she has
right to file an appeal and such appeal does not abate on
account of the death of the respondent husband whether such
death takes place prior to the filing of appeal or pending
the appeal. Similarly, if an ex parte decree of divorce is
obtained against the wife and thereafter if the husband
dies, the aggrieved wife can maintain an application under
Order IX Rule 13 C.P.C., even though the husband might have
died prior to the moving of that application or during the
pendency of such application. In all such cases other legal
heirs of the deceased husband can be brought on record as
opponents or respondents in such proceedings by the
aggrieved spouse who wants such decree to be set aside and
when the other heirs of the deceased husband would naturally
be interested in getting such decree confirm either in
appeal or under Order IX Rule 13 C.P.C. The second
alternative contention as canvassed by the learned counsel
for the appellant, therefore stands rejected.
Before parting with the discussion on this point, we
may mention that in a recent decision of two Member Bench of
this Court consisting of B.P.Jeevan Reddy and K.S.
Paripooran JJ. in C.A.Nos. 12664-65/96 dt.22.9.96 the
decision of the learned Single Judge of the Madras High
Court in Saraswathi Ammal vs. Lakshmi (supra) has been
reversed and the learned Judges have taken the same view
which we are inclined to take in the facts and circumstances
of the present case.
Now remains the question as to whether the proceedings
for divorce as restored by the High Court by its impugned
order and required to be proceeded further or the curtain
must be dropped on the said proceedings.
As the ex parte decree is found to be rightly set aside by
the High Court, the marriage petition would automatically
stand restored on the file of the learned Trial Judge at the
stage prior to that at which they stood when the proceedings
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got intercepted by the ex parte decree. Once that happens it
becomes obvious that the original petitioner seeking decree
of divorce against the wife being no longer available to
pursue the proceedings now, the proceedings will certainly
assume the character of a personal cause of action for the
deceased husband and there being no decree culminating into
any crystalized rights and obligations of either spouse, the
said proceedings would obviously stand abated on the ground
that right to sue would not survive for the other heirs of
the deceased husband to get any decree of divorce against
the wife as the marriage tie has already stood dissolved by
the death of the husband. No action, therefore, survives for
the court to snap such a non-existing tie, otherwise it
would be like trying to slay the slain. At this stage there
remains no marriage to be dissolved by any decree of
divorce. Consequently, now the ex parte decree is set aside,
no useful purpose will be served by directing the Trial
Court to proceed with the Hindu marriage petition by
restoring it to its file. The Hindu Marriage Petition No. 25
of 1989 moved by Shri Basappa, the husband of the
respondent, on the file of the Court of Civil Judge, Gadag
will be treated to have abated and shall stand disposed of
as infructuous. The appeal is disposed of accordingly. In
the facts and circumstances of the case, there will be no
order as to costs.